Pressley v. New Jersey Dep't of Corrections

On appeal from a Final Determination of the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 12, 2010

Before Judges Yannotti and Chambers.

Dallas Pressley, an inmate who is incarcerated in the State's Bayside State Prison, appeals from a final determination of the Department of Corrections (DOC), finding that he committed prohibited act *.202, possession or introduction of a weapon, in violation of N.J.A.C. 10A:4-4.1(a). We affirm.

The following facts bear upon our decision. On October 14, 2008, senior corrections officers Kowalski and Faircloth undertook a random search of Pressley's cell and noticed that the pillow on his bed was opened at the seam. Kowalski pulled from the pillow a piece of metal, approximately seven inches long, with cloth wrapped around one end. Pressley was charged with prohibited act *.202, possession or introduction of a weapon, and removed to a holding cell.

The charge was investigated by Sergeant Kenney, who noted in his investigative report that the piece of metal found in Pressley's pillow was "wrapped in cloth like a handle" and its end appeared to have been sharpened to a point. Kenney wrote that the metal object could "clearly cause severe injury or death." The matter was referred for a hearing.

Pressley made two requests for a polygraph exam. Those requests were denied. At the hearing, Pressley pled not guilty to the charge. He requested and was granted the assistance of counsel substitute. Pressley denied that he possessed any weapon. He asserted that he did not know how the weapon got into the pillow on his bed. Pressley's counsel substitute argued that Pressley should have been given a polygraph examination because it was "possible" that another inmate had "planted" the weapon in Pressley's cell. Pressley did not request any witnesses at the hearing. He was afforded the opportunity to confront adverse witnesses.

The hearing officer found Pressley guilty of the charge and imposed the following sanctions: fifteen days of detention, with credit for time served; 365 days of administrative segregation; and the loss of 365 days of commutation time. Pressley filed an administrative appeal from the hearing officer's decision. On November 17, 2008, the assistant superintendent of the prison upheld the hearing officer's decision. This appeal followed.

Pressley raises the following issues for our consideration:

POINT I

APPELLANT SHOULD HAVE BEEN GRANTED THE POLYGRAPH TO DISPUTE THE TWO SEASONING [SIC] OFFICERS['] CREDIBILITY THAT'S HIGHLY SUSPECT, CONTRADICTING AND CONFLICTING, AS THE ADMINISTRATIVE HEARING OFFICER SHOULD HAVE REQUESTED THAT [THE] SAME BE GRANTED, TOO. THUS, APPELLANT WAS UN-FAIRLY DENIED THE FULL PANOPLY OF DUE PROCESS AND EQUAL PROTECTION RIGHTS AFFORDED IN THE U.S. CONST. 14TH AMEND.

POINT II

RESPONDENT'S AGREEMENT THAT A GROSS VIOLATION WAS IN PLACE AND A RE-HEARING IS IN ORDER MUST BE DENIED BECAUSE THE MERITORIOUS LEGAL CLAIMS ARTICULATED HEREIN WARRANTS FOR THE PUBLIC INTEREST TO CONTINUE TO HOLD CONFIDENCE IN THE JURISPRUDENCE [SIC] SYSTEM TO ADDRESS THE DOC['S] ONGOING ILLEGAL POLICY, REGULATION AND PROCEDURE AT WILL THAT'S CONTRARY TO WELL ESTABLISHED ADMINISTRATIVE LAW PURSUANT TO N.J.A.C. 10A: ET SEQ., AS WELL IN ACCORDANCE WITH DUE PROCESS/EQUAL PROTECTION RIGHTS[.]

POINT III

RESPONDENT CREATED THIS SITUATION THAT TRIGGERED THE LITIGATION AT HAND AND THEREFORE, PURSUANT TO N.J.A.C. 10A:3-9.13, RESPONDENT MUST BE RESPONSIBLE FOR ALL THE FINANCIAL COST ENTAILED IN THIS LITIGATION AT BAR[.]

POINT IV

RESPONDENT'S ADMINISTRATIVE *202 CHARGE WAS NEVER SUPPORTED BY ANY SUBSTANTIAL EVIDENCE PURSUANT TO N.J.A.C. 10A:4-9.15(A.) AND MUST BE REVERSED LEGALLY WITH PREJUDICE[.]

POINT V

RESPONDENT[S] MUST COMPENSATE APPELLANT FOR HIS DAYS SPENT IN 1-LEFT DETENTION AND ADMINISTRATIVE SEGREGATION FOR THE ILLEGAL CONDUCT AND FABRICATED LIES ON THE OFFICIAL STATE DOCUMENTS []ADMIN. *202 AND THE FULL COST OF THIS LITIGATION THAT HIGHLY ENTAILS APPELLANT'S POSTAGE-COST; COPIES-COST; [AND] APPELLANT'S KITCHEN JOB LOST AT $[85].00 PER MONTH WHEN APPELLANT DID NOTHING TO WARRANT THIS ILLEGAL CHARGING CONDUCT AND/OR ILLEGAL TREATMENT[.]

POINT VI

APPELLANT SUBMIT[S] THAT THIS MATTER MUST BE EXPUNGED IMMEDIATELY WITHIN [TEN] DAYS AFTER THIS DECISION FROM APPELLANT'S CLASSIFICATION RECORD, PAROLE RECORD, [AND] ANY OTHER RECORDS THAT EXIST BY THE DOC LODGING SUCH ALLEGED INFRACTION VIOLATIONS, WITH PREJUDICE AND IF EVER USED BY THE DOC/PAROLE BOARD IN THE FUTURE, AGAINST APPELLANT, RESPONDENT BE HELD IN CONTEMPT[] OF COURT AND FINED AT THE COURT['S] DISCRETION[.]

Here, the record established that a piece of metal, about seven inches long and wrapped in cloth at one end, was found in a pillow on Pressley's bed in his cell. Sergeant Kenney stated in his investigative report that the metal object was sharpened at one end and could "cause severe injury or death." Moreover, in his decision, the hearing officer commented:

Inmate Pressley argued that someone put the item in his pillow but [he] could not provide any evidence to support that claim. Since the pillow was on the bed assigned to Inmate Pressley and the item was well hidden inside, it is reasonable to conclude that the inmate was in possession of the item. Additionally, since the pillow was on the bed assigned to [I]nmate Pressley it is not considered a common area and [I]nmate [Pressley] [had] exclusive access to the bed/pillow.

We are satisfied that there is sufficient credible evidence in the record to support the DOC's determination that Pressley possessed or introduced a weapon into the facility.

Pressley argues, however, that the DOC erred by refusing to accede to his requests for a polygraph examination. N.J.A.C. 10A:3-7.1(a) authorizes the administrator of a correctional facility or his designee to order a polygraph examination "1.

[w]hen there are issues of credibility regarding serious incidents or allegations which may result in a disciplinary charge; or 2. [a]s part of a reinvestigation of a disciplinary charge, when the [a]dministrator or designee is presented with new evidence or finds serious issues of credibility."

In Ramirez v. Dep't of Corrections, 382 N.J. Super. 18 (App. Div. 2005), we observed that, in determining whether to exercise his discretion and order a polygraph exam, the administrator "must be guided by whether" denial of the exam "will impair the fundamental fairness of the disciplinary proceeding." Id. at 24. We stated that the fairness of a hearing may be impaired when there are inconsistencies in the statements of the corrections officers involved "or some other extrinsic evidence involving credibility, whether documentary or testimonial, such as a statement by another inmate or staff member on the inmate's behalf." Ibid.

We are satisfied that the DOC did not abuse its discretion by refusing Pressley's requests for a polygraph exam and the absence of the exam did not impair the fairness of the proceeding. A polygraph exam was not required to resolve any issue of credibility that was material to the charge. We note that Pressley was afforded an opportunity to confront Officers Kowalski and Faircloth, thereby providing the hearing officer with a sufficient basis upon which to assess the credibility of their statements. In addition, the other evidence presented at the hearing provided the hearing officer with a sufficient basis to assess Pressley's claim that he did not possess and knew nothing about the weapon found in the pillow on his bed.

We have considered the other arguments raised by Pressley in this appeal and find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

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